City of Cleveland v. CheathamCity of Cleveland v. Cheatham
This is an original proceeding in this court, wherein the plaintiff, The City of Cleveland, Pawnee County, Oklahoma, seeks a , writ, prohibiting the defendant, Vfilliam L.,Cheatham, Judge of the Superi- or Court of Creek County, Oklahoma from proceeding further in an action, pending in said court, in.which Vandean Hambright is plaintiff and .this applicant and one Guy T, Beale are defendants, because of lack of, jurisdiction .due to venue.
The facts will be chronologically outlined. On October 20, 1953, in the Superi- or Court of Creek County, Drumright Division, State • of Oklahoma, Vandean Hambright, as’ plaintiff filed his- petition, alleging that, - due’ to an automobile- collision in Pawnee County, Oklahoma, on" August 11, 1953, and as the proximate result of the negligence of the defendant Guy T. Beale while ácting within the scope of his employment as Chief of Police of the ' other’ defendant, City of Cleveland; Oklahoma, a mtmicipal corporation, he-: sustained ’ personal injuries for which he prayed-for judgment for .damages. ' The defendant, Beale, was regularly’ served with summons in Creek County and he filed a motion to qua-sh summons but did not raise the question of venue. Subsequently and after the motion was oyer-ruled; he filed answer in the nature of -gen-, eral denial which also did not raise the, question of venue.
As to the corporate defendant who is the plaintiff herein, it was served with summons in Pawnee County. Various motions attacking the jurisdiction of the court were filed but, frbm the standpoint of the’ issue here presented, we need consider only that,- after the filing of an amended’ petition and amendment thereto on behalf of the plaintiff in the daniáge suit, the corporate defendant filed a special appearance and motion to quash and objection to the jurisdiction of the court because of venue. ' That motion was overruled and exceptions duly saved.
The present action has been brought for the purpose of prohibiting further proceedings because of lack of jurisdiction. By 12 O.S.1951 § 133, it is provided that an action against a public officer for an act done by him in virtue, or under color, of his office “must be brought in the county where the cause, or some part thereof arose.” Herein, the ■ cause of action as alleged in the petition arose in Pawnee County. Therefore as an original proposition, the venue was in Pawnee County and not in Creek County where the action was filed. We are then confronted with the question of what effect on the rights of -the corporate defendant, did the general appearance of the individual defendant have? In the case of Summers v. Williams,
Now, when the Creek County Court acquired jurisdiction over the person of Beale, the venue of the action was not changed. It was still in Pawnee County but Beale had waived his right to- object. We are not cited to any reported case, by the parties here, wherein the factual situation is analogous. Upon - independent investigation we find only two. In the case of Wood, Curtis & Co. v. Herman Min. Co.,
“The .language of section 395 requires the action to be. tried in the county in which the defendants, or some of them, reside, not where they do not reside. The consent of certain defendants not residing in the county where the action is brought could not take away from other defendants who did not reside there the right to have the cause transferred to the county of their residence. To hold otherwise would be a violation of the provisions of section 395.”
In the case of Royal Bank of Canada v. A. McCormick Co.,
“When, a personal action of debt is brought against only one. defendant, in-a district other than that of his residence and he fails to move in due form for its transfer to the proper district, the court has jurisdiction of the action; but when the action is brought against two defendants who are residents of a district other than that in which the action was begun, a chánge of. venue to the proper district should be granted on the motion of only one o'f them although the other makes no such motion. Neither the submission of one nor even his express consent that the court con-tinúe its jurisdiction of the case can deprive the other of his right under the.law to have the case tried at,the place of residence of both.”
The reasoning in the quoted cases is logically sound. The fact that one of several defendants submits to the jurisdiction of the court does not change the venue of the cause of action. It is merely a waiver of that defendant’s personal right to demand a trial of the case in the county where the venue is fixed by statute. Herein, the allegations of the petition are to the effect that the cause of action arose in Pawnee County. Being an action against a public officer for an.-act done in virtue of his office, 12 O..S.1951 § 133 fixed, the venue in that county., ...When the case was filed ■in Creek Cotínty, each defendant -.had a right to object, that- right being personal to the respective defendants. When Beale appeared'generally without first objecting to jurisdiction of the court because of venue, he waived’his right but that could have no effect on the co-defendant, the City of Pawnee,. That entry of appearance did not change the venue as fixed by statute. The municipality had the right tc object which it did in proper manner'at all stages possible. Its motion should have been sustained.
When the trial court, attempted to exercise jurisdiction which it had not obtained Over the defendant, two courses were open
“We are committed to the rule that prohibition is the proper remedy to prevent a court from trying a case of which it lacks jurisdiction because the venue is in another county. Mills v. District Court of Lincoln County,
The writ is granted and is hereby ordered issued.